Bombing the Constitution

The negative outcomes of the Boston bombings are multiple. First of all, of course, were the three deaths. Second of all were the injuries, ranging from minor to life-changing. (As a 30-year-plus triathlete and a former marathoner [although never Boston - too tough for me!], I identified particularly with the runners who lost one or both legs.) Third, perhaps the most long-lasting in terms of our nation as a whole, is the attack on various aspects of U.S. Constitutional Democracy, reflecting what has been underway since the response to 9/11 which was exploited with such evil intent by the Bush/Cheney regime.

First, let us consider the use of the term "Miranda Rights" in referring to the initial juridical process applied to the surviving bomber (who has apparently confessed). The way the term is used by most reporters, commentators, and politicians implies that there is some special set of rights that were created at some time in the past to protect persons arrested on criminal charges. The implication always is that there is some special set of privileges granted to certain arrested persons, especially "very bad" ones.

But as it happens there are no "Miranda Rights," no special group of rights plucked out of thin air, or, heaven forfend, invented by some awful (liberal, you know) Supreme Court to protect the otherwise undeserving. The Rights in question are actually Constitutional Rights, ensconced in the Fifth and Fourteenth Amendments to the Constitution. They guarantee, or are supposed to guarantee, due process of the law (which includes right-to-counsel) and protection against self-incrimination, before questioning by the authorities can begin, to any arrestee.

The term "Miranda" which has been so widely used since the Boston horror, refers to a 1966 Supreme Court decision that simply said that all arrestees have these rights, whether they know that they have them or not. Thus the terms "Miranda warning" and "Mirandizing." Virtually any watcher of any TV crime show is familiar with an arresting officer saying to an arrestee: "You have the right to an attorney. You have the right to remain silent. Anything you say can and will be used against you." Thus "Miranda" simply refers to a process clearly and unequivocally written into the Constitution, not any special group of rights. All US citizens have these rights, or should have them, under the Constitution. "Mirandizing" is to make sure that any person has them in practice, whether they happen to know that they have them, and can articulate them, or not.

So when the discussion/debate over how the surviving brother, Dzhokhar Tsarnaev, should be handled, the true subject was improperly referred to, over and over again, as "Miranda Rights," implying that they are something malleable. And so, the existence of what is now called "The Public Safety" exception, created by the Supreme Court through several cases in recent years. It is applied here to the surviving brother of the pair who happen to be Muslims, because what they did has been labeled as "Muslim terrorism," when, as has been pointed out by a number of observers, other mass slaughters, like Newtown, Aurora, and Columbine, done by native white, presumably Christian, males, are not.

Two precedents have been established here. One is that the Supreme Court can in essence amend the Constitution even when its language is clear and unequivocal. The other is that if one part of the Constitution that is clear as a bell, like the Fifth Amendment, can be amended in this manner, then others could be too. "The Public Safety Exception" has become part of the general public's vocabulary in dealing with arrestees/suspects rights under the law. There may be certain challenges issued in this case, by organizations like the American Civil Liberties Union, but that remains to be seen. In the meantime, that a major hole has been punched in the Constitution protecting everyone seems to have gone on the one hand widely un-noticed and on the other widely endorsed.

Then we come to Sen. Lindsey Graham's proposal that Dzhokhar Tsarnaev be treated as an "enemy combatant." Fortunately, the Federal government decided not to do this, in the case of an American citizen. But Graham's proposal raises a number of interesting Constitutional questions. With whom is the United States legally at war in this case? Rhetorically, of course, the nation has been at war "against terrorism" (which at the beginning of the so-called "War" a retired Army officer labeled as being like a "War on Flanking Maneuvers"), or against the nebulous (and sometime ally, see Libya and Syria) "al-Qaeda," or against the not-so-nebulous "Taliban." But none of these wars have ever been declared by Congress. So how then would Dzhokhar Tsarnaev, like so many of those held at Guantanamo, become an "enemy combatant?"

Next, while it is quickly becoming clear that what motivated the Tsarnaev brothers was a hatred of US policy in Muslim countries, there are lots of Muslims and non-Muslims who agree with them. Which leads to the proposal from the Right, in and outside of legislative chambers, that if one hears a person making critical statements against US foreign policy, like those that the Tsarnaevs made, those persons should be reported. To whom I wonder. The Gestapo (which had such a policy)? The Stasi (which had such a policy)? (Sorry to pick two German examples, but they do come readily to mind). Or perhaps to The Helmsmen, of The 15% Solution. And then what is done with these reports? But we shall leave that subject for another day. In the meantime, the government assault on the Constitution, under the cover of the Boston Bombing, just takes us one step further towards its destruction.

Historical footnote: It is interesting to me that I did not hear anyone comment on the first name of the dead brother, Tamerlan. There was a true historical figure who went by that name. He was a 14th century scholar/tyrant/emperor/plunderer from what is now Uzbekistan. Strange that anyone would choose to give a son such a name, but that too is another matter. Except to say that I am surprised that certain GOP Senators have not already raised the question in challenging the competence of the FBI and the INS.

Steven Jonas, MD, MPH is a Professor of Preventive Medicine at Stony Brook University (NY) and author/co-author/editor/co-editor of over 30 books. In addition to being a columnist for BuzzFlash@Truthout he is the Editorial Director of and a Contributing Author to The Political Junkies for Progressive Democracy (http://thepoliticaljunkies.org/).